Amendment SSA1-SB78

SENATE SUBSTITUTE AMENDMENT 1, TO 2005 SENATE BILL 78

April 1, 2005 - Offered by Committee on Health, Children, Families, Aging and Long Term Care.

SB78-SSA1,1,12 An Act to renumber 961.22 (3) (a), 961.437, 961.49, 961.61 and 961.62; to renumber and amend 961.46; to amend 101.10 (title), 101.10 (3) (e), 895.555 (title), 895.555 (1), 938.34 (14s) (am) (intro.), 939.62 (2m) (a) 2m. d., 939.62 (2m) (d), 961.23 (1), 961.23 (2), 961.23 (3), 961.23 (4), 961.23 (5), 961.41 (1r), 961.49 (title) and 973.01 (2) (c) 2. a.; and to create 101.10 (3) (f), 111.335 (1) (cs) 5., 125.12 (2) (ag) 5m., 125.12 (2) (ag) 6m., 125.12 (4) (ag) 7m., 125.12 (4) (ag) 8m., 939.32 (1) (g), 939.62 (2m) (a) 2m. am., 961.01 (14f), 961.01 (17m), 961.01 (20c), 961.01 (20d), 961.01 (20e), 961.22 (3) (am), 961.23 (6), 961.23 (8), 961.235, 961.452, 961.46 (2), 961.49 (2m), 961.63, 961.65, 973.017 (8) (a) 3. and 973.017 (8) (c) of the statutes; relating to: pseudoephedrine and other materials used to produce methamphetamine, the distribution of methamphetamine to minors, and providing penalties.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB78-SSA1, s. 1 Section 1. 101.10 (title) of the statutes is amended to read:

SB78-SSA1,2,3 101.10 (title) Storage and handling of anhydrous ammonia; theft of liquid nitrogen, anhydrous ammonia, and anhydrous ammonia equipment.

SB78-SSA1, s. 2 Section 2. 101.10 (3) (e) of the statutes is amended to read:

SB78-SSA1,2,9 101.10 (3) (e) Intentionally take, carry away, use, conceal, or retain possession of liquid nitrogen, anhydrous ammonia belonging to another, or anhydrous ammonia equipment belonging to another, without the other's consent and with intent to deprive the owner permanently of possession of the liquid nitrogen, anhydrous ammonia, or anhydrous ammonia equipment.

SB78-SSA1, s. 3 Section 3. 101.10 (3) (f) of the statutes is created to read:

SB78-SSA1,2,14 101.10 (3) (f) Intentionally release or allow the escape of anhydrous ammonia belonging to another into the atmosphere. This paragraph does not apply if the owner has authorized the actor to exercise control over the anhydrous ammonia or has consented to its release.

SB78-SSA1, s. 4 Section 4. 111.335 (1) (cs) 5. of the statutes is created to read:

SB78-SSA1,2,18 111.335 (1) (cs) 5. Possessing any of the materials listed in s. 961.65 with intent to manufacture methamphetamine under that subsection or under a federal law or a law of another state that is substantially similar to s. 961.65.

SB78-SSA1, s. 5 Section 5. 125.12 (2) (ag) 5m. of the statutes is created to read:

SB78-SSA1,2,23 125.12 (2) (ag) 5m. The person has been convicted of possessing any of the materials listed in s. 961.65 with intent to manufacture methamphetamine under that subsection or under a federal law or a law of another state that is substantially similar to s. 961.65.

SB78-SSA1, s. 6 Section 6. 125.12 (2) (ag) 6m. of the statutes is created to read:

SB78-SSA1,3,3 125.12 (2) (ag) 6m. The person knowingly allows another person, who is on the premises for which the license under this chapter is issued, to possess any of the materials listed in s. 961.65 with the intent to manufacture methamphetamine.

SB78-SSA1, s. 7 Section 7. 125.12 (4) (ag) 7m. of the statutes is created to read:

SB78-SSA1,3,8 125.12 (4) (ag) 7m. That the licensee has been convicted of possessing any of the materials listed in s. 961.65 with intent to manufacture methamphetamine under that subsection or under a federal law or a law of another state that is substantially similar to s. 961.65.

SB78-SSA1, s. 8 Section 8. 125.12 (4) (ag) 8m. of the statutes is created to read:

SB78-SSA1,3,12 125.12 (4) (ag) 8m. That the licensee knowingly allows another person, who is on the premises for which the license under this chapter is issued, to possess any of the materials listed in s. 961.65 with the intent to manufacture methamphetamine.

SB78-SSA1, s. 9 Section 9. 895.555 (title) of the statutes is amended to read:

SB78-SSA1,3,15 895.555 (title) Liability exemption; anhydrous ammonia and liquid nitrogen.

SB78-SSA1, s. 10 Section 10. 895.555 (1) of the statutes is amended to read:

SB78-SSA1,3,23 895.555 (1) Liability exemption. Except as provided under sub. (2), any person who owns, maintains, or installs anhydrous ammonia equipment, as defined in s. 101.10 (1) (b), or who uses anhydrous ammonia or liquid nitrogen for any legal purpose is immune from any civil liability for acts or omissions relating to the anhydrous ammonia equipment or to anhydrous ammonia or liquid nitrogen that cause damage or injury to an individual, if that damage or injury occurs during the individual's violation of s. 101.10 (3) (c), (d), or (e), or (f).

SB78-SSA1, s. 11 Section 11. 938.34 (14s) (am) (intro.) of the statutes is amended to read:

SB78-SSA1,4,3 938.34 (14s) (am) (intro.) In addition to any other dispositions imposed under this section, if the juvenile is found to have violated s. 961.41 (1) or (1m) or 961.65, the court shall order one of the following penalties:

SB78-SSA1, s. 12 Section 12. 939.32 (1) (g) of the statutes is created to read:

SB78-SSA1,4,6 939.32 (1) (g) Whoever attempts to commit a crime under s. 101.10 (3) (e) is subject to the penalty for the completed act, as provided in s. 101.10 (4) (b).

SB78-SSA1, s. 13 Section 13. 939.62 (2m) (a) 2m. am. of the statutes is created to read:

SB78-SSA1,4,8 939.62 (2m) (a) 2m. am. A crime under s. 961.65.

SB78-SSA1, s. 14 Section 14. 939.62 (2m) (a) 2m. d. of the statutes is amended to read:

SB78-SSA1,4,12 939.62 (2m) (a) 2m. d. A crime at any time under federal law or the law of any other state or, prior to April 28, 1994, under the law of this state that is comparable to a crime specified in subd. 2m. a., am., b., or c.

SB78-SSA1, s. 15 Section 15. 939.62 (2m) (d) of the statutes is amended to read:

SB78-SSA1,4,19 939.62 (2m) (d) If a prior conviction is being considered as being covered under par. (a) 1m. b., or 2m. d. as comparable to a felony specified under par. (a) 1m. a. or 2m. a., am., b., or c., the conviction may be counted as a prior conviction under par. (b) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under par. (a) 1m. a. or 2m. a., am., b., or c. if committed by an adult in this state.

SB78-SSA1, s. 16 Section 16. 961.01 (14f) of the statutes is created to read:

SB78-SSA1,4,24 961.01 (14f) "Methamphetamine precursor" means any material, compound, mixture, or preparation that contains any quantity of ephedrine or pseudoephedrine or any of their salts, isomers, and salts of isomers but does not include a product to which sub. (20c) (a) or (b) applies.

SB78-SSA1, s. 17 Section 17. 961.01 (17m) of the statutes is created to read:

SB78-SSA1,5,2 961.01 (17m) "Pharmacy assistant" means a person working under the supervision of a pharmacist.

SB78-SSA1, s. 18 Section 18. 961.01 (20c) of the statutes is created to read:

SB78-SSA1,5,6 961.01 (20c) "Pseudoephedrine" does not include a product containing the chemical pseudoephedrine or any of its salts, isomers, or salts of isomers if any of the following applies:

SB78-SSA1,5,9 (a) The product is a pseudoephedrine liquid or gelcap. This paragraph does not apply if the package containing the product contains more than 360 milligrams of the chemical pseudoephedrine or any of its salts, isomers, or salts of isomers.

SB78-SSA1,5,11 (b) The controlled substances board has determined, by rule, that the product cannot be readily used in the manufacture of methamphetamine.

SB78-SSA1, s. 19 Section 19. 961.01 (20d) of the statutes is created to read:

SB78-SSA1,5,15 961.01 (20d) "Pseudoephedrine gelcap" means a soft gelatin capsule that is intended to be sold at retail and that contains 360 milligrams or less of the chemical pseudoephedrine or any of its salts, isomers, or salts of isomers.

SB78-SSA1, s. 20 Section 20. 961.01 (20e) of the statutes is created to read:

SB78-SSA1,5,20 961.01 (20e) "Pseudoephedrine liquid" means a product that is intended to be sold at retail, that is a liquid at room temperature, and that contains 360 milligrams or less of the chemical pseudoephedrine or any of its salts, isomers, or salts of isomers.

SB78-SSA1, s. 21 Section 21. 961.22 (3) (a) of the statutes is renumbered 961.22 (3) (b).

SB78-SSA1, s. 22 Section 22. 961.22 (3) (am) of the statutes is created to read:

SB78-SSA1,5,23 961.22 (3) (am) Pseudoephedrine.

SB78-SSA1, s. 23 Section 23. 961.23 (1) of the statutes is amended to read:

SB78-SSA1,6,2 961.23 (1) That they They may be dispensed and sold only in good faith as a medicine, and not for the purpose of evading this chapter.

SB78-SSA1, s. 24 Section 24. 961.23 (2) of the statutes is amended to read:

SB78-SSA1,6,6 961.23 (2) That they They may be sold at retail only by a registered pharmacist or, if the substance is pseudoephedrine, by a pharmacy assistant when sold in a retail establishment.

SB78-SSA1, s. 25 Section 25. 961.23 (3) of the statutes is amended to read:

SB78-SSA1,6,10 961.23 (3) That, when When sold in a retail establishment, they shall bear the name and address of the establishment on the immediate container of said preparation.

SB78-SSA1, s. 26 Section 26. 961.23 (4) of the statutes is amended to read:

SB78-SSA1,6,20 961.23 (4) That any Any person purchasing such a substance shall, at the time of purchase, present to the seller that person's correct name and, address, and, if the person is purchasing pseudoephedrine, an identification card containing the person's photograph. The seller shall record the name and address and the name and quantity of the product sold. The purchaser and either the seller or, if the substance is pseudoephedrine and is being sold by a pharmacy assistant, the pharmacist supervising the seller shall sign the record of this transaction. The giving of a false name or false address by the purchaser shall be prima facie evidence of a violation of s. 961.43 (1) (a).

SB78-SSA1, s. 27 Section 27. 961.23 (5) of the statutes is amended to read:

SB78-SSA1,6,25 961.23 (5) That no No person may purchase more than 8 ounces of a product containing opium or more than 4 ounces of a product containing any other schedule V substance other than pseudoephedrine within a 48-hour period without the authorization of a physician, dentist, or veterinarian nor.

SB78-SSA1,7,6 (7) No person other than a physician, dentist, veterinarian, or pharmacist may possess more than 8 ounces of a product containing opium or more than 4 ounces of a product containing any other schedule V substance be in the possession of any person other than a physician, dentist, veterinarian or pharmacist other than pseudoephedrine at any time without the authorization of a physician, dentist, or veterinarian.

SB78-SSA1, s. 28 Section 28. 961.23 (6) of the statutes is created to read:

SB78-SSA1,7,11 961.23 (6) No person other than a physician, dentist, veterinarian, or pharmacist may purchase more than 6 grams of a product containing pseudoephedrine within a 30-day period without the authorization of a physician, dentist, or veterinarian.

SB78-SSA1, s. 29 Section 29. 961.23 (8) of the statutes is created to read:

SB78-SSA1,7,14 961.23 (8) No person may sell pseudoephedrine to a person under 18 years of age, and no person under 18 years of age may purchase pseudoephedrine.

SB78-SSA1, s. 30 Section 30. 961.235 of the statutes is created to read:

SB78-SSA1,7,20 961.235 Records relating to pseudoephedrine sales. Records required under s. 961.23 (4) with respect to the sale of pseudoephedrine may be kept in either a paper or electronic format and shall be maintained by the pharmacy for at least 5 years. Only a pharmacist or a law enforcement officer may have access to information recorded under s. 961.23 (4) with respect to the sale of pseudoephedrine.

SB78-SSA1, s. 31 Section 31. 961.41 (1r) of the statutes is amended to read:

SB78-SSA1,8,7 961.41 (1r) Determining weight of substance. In determining amounts under s. 961.49 (2) (b), 1999 stats., and subs. (1) and (1m), and s. 961.65, an amount includes the weight of cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methamphetamine precursors, methcathinone, or tetrahydrocannabinols or any controlled substance analog of any of these substances together with any compound, mixture, diluent, plant material or other substance mixed or combined with the controlled substance or, controlled substance analog, or methamphetamine precursors. In addition, in determining amounts under subs. (1) (h) and (1m) (h), the amount of tetrahydrocannabinols means anything included under s. 961.14 (4) (t) and includes the weight of any marijuana.

SB78-SSA1, s. 32 Section 32. 961.437 of the statutes is renumbered 961.67.

SB78-SSA1, s. 33 Section 33. 961.452 of the statutes is created to read:

SB78-SSA1,8,14 961.452 Defenses in certain schedule V prosecutions. (1) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under s. 961.41 (1) (j) that is based on the person's violation of a condition specified in s. 961.23 with respect to the person's distribution or delivery of pseudoephedrine:

SB78-SSA1,8,16 (a) The person did not knowingly or recklessly violate the condition under s. 961.23.

SB78-SSA1,8,19 (b) The person reported his or her own violation of the condition under s. 961.23 to a law enforcement officer in the county or municipality in which the violation occurred within 30 days after the violation.

SB78-SSA1,8,23 (2) A seller who proves all of the following by a preponderance of the evidence has a defense to prosecution under s. 961.41 (1) (j) that is based on the person's violation of a condition specified in s. 961.23 with respect to the person's distribution or delivery of pseudoephedrine:

SB78-SSA1,8,25 (a) The person did not knowingly or recklessly violate the condition under s. 961.23.

SB78-SSA1,9,2 (b) The acts or omissions constituting the violation of the condition under s. 961.23 were the acts or omissions of one or more of the person's employees.

SB78-SSA1,9,4 (c) The person provided training to each of those employees regarding the restrictions imposed under s. 961.23 on the delivery of pseudoephedrine.

SB78-SSA1,9,6 (3) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under s. 961.41 (1) (j) for a violation of s. 961.23 (6):

SB78-SSA1,9,8 (a) The purchaser presented an identification card that contained a name or address other than the person's own.

SB78-SSA1,9,11 (b) The appearance of the purchaser was such that an ordinary and prudent person would believe that the purchaser was the person depicted in the photograph contained in that identification card.

SB78-SSA1,9,14 (c) The sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser, and in the belief that the name and address of the purchaser were as listed on the identification card.

SB78-SSA1,9,16 (4) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under s. 961.41 (1) (j) for a violation of s. 961.23 (8):

SB78-SSA1,9,18 (a) The purchaser presented an identification card that indicated that he or she was 18 years of age or older.

SB78-SSA1,9,20 (b) The appearance of the purchaser was such that an ordinary and prudent person would believe that the purchaser was 18 years of age or older.

SB78-SSA1,9,23 (c) The sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser, and in the belief that the purchaser was 18 years of age or older.